Court date set for Berger's appeal

Published: Tuesday, June 25, 2013 at 11:42 a.m.

Last Modified: Tuesday, June 25, 2013 at 11:42 a.m.

A court date has been set for former New Hanover County Commissioner Brian Berger’s appeal hearing.

Berger will face off against the Board of Commissioners again July 16 in N.C. Business Court in Greensboro.

Berger was removed from the board May 20 following an amotion hearing. The commissioners voted 3-2 to oust him, with Berger and Commissioner Jonathan Barfield voting against the move.

Calling the amotion hearing unconstitutional, the ousted commissioner filed a court appeal with the New Hanover County Superior Court in mid-June to be reinstated and asking the court to prevent the county from appointing someone to fill his seat.

New Hanover County Attorney Wanda Copley said she had no comment on the case, as it is considered “pending litigation,” and Berger’s attorney, Christopher Anglin of Raleigh, could not be reached for comment Tuesday.

According to the court order released late last week, Berger and the board will have a hearing before Special Superior Court Judge James Gale.

Gale is a Greensboro-based Special Superior Court Judge for complex business cases.

Gale will decide whether or not an amotion is a proper way to remove an elected official and whether the rules for the amotion hearing passed by the board allowed for due process. If Gale rules that the amotion was valid, he will also have to determine whether or not the court has the jurisdiction and power to review an appeal.

The order, written by Gale, also requires that Berger’s seat on the board remain vacant until after the hearing in mid-July and states that the clerk of Superior Court shall not take action to fill the vacant seat left by Berger’s removal any earlier than sixty days following the hearing.

This is not the first time Gale has been involved in Berger’s legal proceedings.

Days before Berger’s amotion hearing was scheduled to take place, Berger’s attorney filed a temporary restraining order. Gale denied the request, stating that “if necessary and appropriate” the case would be privy to a “subsequent post-hearing review.”

Gale was given the case after Sarah Parker, the Chief Justice of the N.C. Supreme Court, ruled the case as “exceptional” and assigned Gale as the presiding judge in a written order to W. Allen Cobb, Jr., one of the senior resident judges of the New Hanover County Superior Court.

If the Chief Justice rules a case as “exceptional” it falls under a special statute, Rule 2.1 of the General Rules of Practice for the Superior and District Courts, that allows the court to assign one judge to manage the case from start to finish.

A representative with the New Hanover County Superior Court Clerk’s Office said Cobb asked for another judge to take over the case and added that complex cases are often assigned to business court, but could not given further details. Calls to Cobb’s office were not returned Tuesday.

Michael Crowell, a professor of public law and government at the University of North Carolina-Chapel Hill, said there “isn’t anything really unusual” about the case being given to Gale.

Gale is just currently assigned to business court, Crowell said. Gale is a regular superior court judge, not only a business court judge.

“I suspect that the judges who there (in New Hanover) and are assigned there probably asked to have another judge come in,” Crowell said. “... The judge it was assigned to just happens to be at business court.”

Gale’s decision on Berger’s appeal will carry a lot of weight.

Berger’s case marked the first time an amotion has been successfully used to remove a North Carolina elected official in nearly a century, which could make it the new precedent for the state if upheld.

<p>A court date has been set for former New Hanover County Commissioner Brian Berger's appeal hearing.</p><p>Berger will face off against the Board of Commissioners again July 16 in N.C. Business Court in Greensboro.</p><p>Berger was removed from the board May 20 following an amotion hearing. The commissioners voted 3-2 to oust him, with Berger and Commissioner Jonathan Barfield voting against the move.</p><p>Calling the amotion hearing unconstitutional, the ousted commissioner filed a court appeal with the New Hanover County Superior Court in mid-June to be reinstated and asking the court to prevent the county from appointing someone to fill his seat.</p><p>New Hanover County Attorney Wanda Copley said she had no comment on the case, as it is considered “pending litigation,” and Berger's attorney, Christopher Anglin of Raleigh, could not be reached for comment Tuesday. </p><p>According to the court order released late last week, Berger and the board will have a hearing before Special Superior Court Judge James Gale. </p><p>Gale is a Greensboro-based Special Superior Court Judge for complex business cases. </p><p>Gale will decide whether or not an amotion is a proper way to remove an elected official and whether the rules for the amotion hearing passed by the board allowed for due process. If Gale rules that the amotion was valid, he will also have to determine whether or not the court has the jurisdiction and power to review an appeal.</p><p>The order, written by Gale, also requires that Berger's seat on the board remain vacant until after the hearing in mid-July and states that the clerk of Superior Court shall not take action to fill the vacant seat left by Berger's removal any earlier than sixty days following the hearing. </p><p>This is not the first time Gale has been involved in Berger's legal proceedings.</p><p>Days before Berger's amotion hearing was scheduled to take place, Berger's attorney filed a temporary restraining order. Gale denied the request, stating that “if necessary and appropriate” the case would be privy to a “subsequent post-hearing review.”</p><p>Gale was given the case after Sarah Parker, the Chief Justice of the N.C. Supreme Court, ruled the case as “exceptional” and assigned Gale as the presiding judge in a written order to W. Allen Cobb, Jr., one of the senior resident judges of the New Hanover County Superior Court. </p><p>If the Chief Justice rules a case as “exceptional” it falls under a special statute, Rule 2.1 of the General Rules of Practice for the Superior and District Courts, that allows the court to assign one judge to manage the case from start to finish.</p><p>A representative with the New Hanover County Superior Court Clerk's Office said Cobb asked for another judge to take over the case and added that complex cases are often assigned to business court, but could not given further details. Calls to Cobb's office were not returned Tuesday.</p><p>Michael Crowell, a professor of public law and government at the University of North Carolina-Chapel Hill, said there “isn't anything really unusual” about the case being given to Gale.</p><p>Gale is just currently assigned to business court, Crowell said. Gale is a regular superior court judge, not only a business court judge.</p><p>“I suspect that the judges who there (in New Hanover) and are assigned there probably asked to have another judge come in,” Crowell said. “... The judge it was assigned to just happens to be at business court.”</p><p>Gale's decision on Berger's appeal will carry a lot of weight. </p><p>Berger's case marked the first time an amotion has been successfully used to remove a North Carolina elected official in nearly a century, which could make it the new precedent for the state if upheld.</p><p>Ashley Withers: 343-2223</p><p>On <a href="http://www.starnewsonline.com/section/news41"><b>Twitter</b></a>: @AshleyWithers</p>